IN THE COURT OF APPEAL OF UGANDA AT MBARARA
CRIMINAL APPEAL NO. 122/2005
SILAGI BURORO GORDON:::::::::::::::::::::::::::::::::APPELLANT
UGANDA ::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
HON. JUSTICE A.TWINOMUJUNI,JA;
HON. JUSTICE S.B.K. KAVUMA,JA;
HON. JUSTICE M.S. ARACH AMOKO,JA;
years at the timeof the commission of the offence. On the 13.04.2001 at about 10.am the victim who was in the area of P.W.I’s canteen near its kitchen came from the direction of the kitchen where the appellant was doing some operation work. The victim came crying calling out her mother and saying that the appellant had molested her. She was also touching her private parts. P.W.I together with one Kedres Kwatampola, P.W.3 decided to examine the private parts of the victim where they found semen. When the victim was shortly afterwards examined by Dr. Trifon Mugisha, P.W.4, she was found to have a freshly ruptured hymen. The doctor also found mobile sperms in the victims tiny vagina.
The appellant was arrested and subsequently charged with defilement contrary to s.129 (1) of the Penal Code Act. He denied having committed the offence. The learned trial judge disbelieved and convicted him as charged and sentenced him to 15 years imprisonment, hence this appeal.
The grounds of Appeal
The Trial judge erred in law and in fact to convict the accused and give him a harsh sentence when there was no evidence.
Counsel argued that the conduct of the appellant, when confronted and asked about the offence, was not that of a guilty person. According to counsel, the appellant denied having committed the offence and calmly went on to do his work. Counsel cited to court and relied on R. Vs Ronald Iswerlat  9EACA 58.
She prayed court to review the evidence on record and dismiss the appeal.
As for the appellants’ participation in the commission of the offence, counsel pointed out that on the day and time in issue, the victim came from the direction of the appellant crying that the appellant had molested her and she was touching her private parts, according to the testimony of P.W.I.
The evidence of P.W.I, counsel submitted, was corroborated by that of P.W.4 who found a freshly ruptured hymen and live sperms in the private parts of the victim.
In counsels’ view, the grudge set up by the appellant over the nonpayment to him by P.W.I of shs 300,000/= was unsustainable. Counsel cited to court the case of Semungoma William vs Uganda Criminal Appeal No. 5 of 1999 (SC) and prayed court to dismiss the appeal, uphold both the conviction and the sentence.
come to its own conclusions bearing in mind, however, that it did not see the witnesses testify.
See Rule 30 of the Judicature (court of Appeal Rules) Directions S.I.13-10. Pandya VR  EA 336, Okeno V Republic  E.A 32 and Kifamunte Henry V Uganda SCCA NO. 10 of 1997 unreported).
The questions at the center of the resolution of this appeal are the participation of the appellant in the commission of the offence of which he was convicted and the appropriateness of the sentence of 15 years imprisonment imposed on him by the learned trial judge.
We find there is ample circumstantial evidence according to the principles enunciated in Simon Musoke v R  EA 715 and Obonyo & others VR  542 to support the conclusion that it was the appellant who defiled the victim.
By his own admission, the appellant was in the vicinity of the scene of crime at the time of the commission of the offence. P.W.I had also testified that the appellant was doing operational work at her canteen behind its kitchen at that time.
According to the unchallenged evidence of P.W.I, she saw the victim coming to her into the canteen from the direction of the appellant at the material time.
The victim was crying calling out P.W.I and touching her private parts. She immediately reported to P.W.I into presence of P.W.3, as she touched her private parts, that the appellant had molested her. P.W.I and P.W.3, on examining the victim found semen in her vagina. The victims’ immediate report to P.W.I of what had befallen her and her crying while touching her private parts was evidence of the conduct of a visibly distressed victim. This conduct corroborates the evidence of P.W.I and P.W.3 stated above. It is also settled law that evidence of a complaint by the victim of a sexual offence is admissible when the complaint is made to a third
person. Any information to the identity of her assistant to the third person is admissible evidence. See Patrick Akol vs Uganda (sc) Criminal Appeal No. 23 of 1992, Badru Mwindu vs Uganda, Court of Appeal No 11 of 1997.
We are not persuaded by the assertion that the victim’s hymen was ruptured by some other cause other than the penetration of the girls vagina by the appellants penis. We find no credible evidence
on record to support this. Courts of law act on credible evidence adduced before them and do not indulge in conjecture, speculation, attractive reasoning or fanciful theories.
See Okala vs Republic 1965 EA 555, and Kanalusasi vs Uganda [1998-1990] HCB 10,
We are not persuaded either that the appellant in the instant case was framed because of a grudge between him and P.W.I who had, according to the appellant, failed to pay him shs 300,000/=. There is evidence on record that the appellant and P.W.I had discussed the matter and agreed on terms of payment. But even if there had been a grudge between the two, the appellant cannot take refuge into it to justify his ravishing the victim, a kid and a total stranger to the grudge. We find, that this is an unsustainable afterthought and a concoction by the appellant.
We reject the appellant’s denial of his involvement in the commission of the offence he was convicted of as a lie, a scheme intended to mislead court.
As regards the appeal against the sentence, we find no merit in it. The sentence imposed by the learned trial is legal. The Judge
considered both the mitigating and the aggravating factors involved in the case before him which included the time the appellant had spent on remand and the breach by him
of the trust of his toddler victim. This court held in Kiwalabye Vs Uganda Court of Appeal Criminal Appeal No. A 143 of 2001, thus:
the discretion has been exercised unjudicially or on wrong principles. Here the trial court gives reasons, the appellate court ill interfere only if the reasons given are clearly wrong or untenable. Here no reasons are given for the decision,
the appellate court will interfere if it is satisfied the is wrong” (sic)
In the instant appeal, we find no cause to interfere with the trial courts’ discretion in sentencing the appellant. The judge acted properly in sentencing the appellant to 15 years imprisonment.
In the result, we dismiss the appeal for lack of merit. We uphold both the conviction and the sentence of 15 years imprisonment imposed on the appellant.
Dated at Mbarara this…15th…day of…November…2010
Justice of Appeal
Justice of Appeal
M.S. Arach Amoko
Justice of Appeal